SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE: CV-14-10552-CL

DATE: 20140715

RE: Ceridian Canada Ltd. and Pendylum Inc. / Plaintiffs

AND:

Farida Azeezodeen / Defendant

BEFORE: Justice E. P. Belobaba

COUNSEL:
David E. Lederman and Ryan Cookson for the Plaintiffs

Farida Azeezodeen, self-represented Defendant

HEARD: July 8, 2014

Contempt of court - Sentencing

[1] In a decision released on June 24, 2014 I found the defendant Farida Azeezodeen, in contempt of court under Rule 60.11(1) of the Rules of Civil Procedure.[1] I heard the parties’ sentencing submissions on July 8, 2014. This is the sentencing decision.

Background

[2] The background facts were set out in the Contempt Decision[2] and will not be repeated here. However, they can be summarized as follows. After her employment was terminated for refusing to undergo a background check, the defendant embarked on an email campaign with her former employer that culminated in threats and conduct akin to extortion. The defendant told the plaintiffs that if they didn’t settle with her and pay a significant sum of money by a certain date, she would issue a long and detailed press release disclosing the plaintiffs’ confidential business methods and disparaging their business reputation.

[3] On the Friday before the threatened Monday press release, the plaintiffs sought and obtained from this court a five-day ex parte injunction prohibiting the defendant from publishing the press release. The defendant did not comply with the Court Order and proceeded to carry out her threat. The press release was issued and the plaintiffs’ confidential information was widely disseminated over the Internet by numerous news outlets.

[4] I concluded that the defendant knowingly and deliberately breached paragraphs 5 and 7 of my Order of May 9, 2014 by releasing the enjoined document to press agencies, by making absolutely no effort to stop this public release despite the pleas and offers of assistance from the plaintiffs and by failing to provide the plaintiffs with the list of persons to whom she had disclosed the confidential information. I found beyond a reasonable doubt that the defendant was in contempt of court.

The applicable law

[5] Most people readily understand that the power of the court to enforce its orders by way of contempt proceedings is integral to the rule of law and the administration of justice. Once a court order has been issued, it is imperative that it be obeyed, that the public understand it must be obeyed, and that judges have the will and the ability to ensure compliance.[3] As Cumming J. noted:

It is integral to a free and democratic society like Canada that citizens act pursuant to and under the rule of law. Court orders in force must be respected and followed. The deliberate failure to obey a court order strikes at the very heart of the administration of justice.[4]

[6] The proper route for challenging a court order is by appeal or by another proceeding before the courts, not by ignoring its terms. As Justice Blair noted in Surgeoner: “No society which believes in a system of even-handed justice can permit its members to ignore, disobey, or defy its laws and its court orders at their whim because in their own particular view it is right to do so.”[5]

[7] The court has a broad discretion when imposing sanctions for civil contempt. Under Rule 60.11(5), the court can order that the person found in contempt of court be imprisoned, pay a fine or costs, or comply with any other order that the judge considers necessary. As this court noted in Curran, there are basically four options available upon a finding of contempt: “No penalty (usually where the contempt has been purged); a suspended sentence (perhaps conditional upon some act or event occurring); a fine; or incarceration.”[6]

[8] The applicable sentencing principles are not in dispute. A sentence of civil contempt must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The severity of the sentence should be increased or reduced to account for aggravating and mitigating factors in the circumstances of the case.[7] The primary factors guiding the Court’s discretion are general and specific deterrence. As Lax J. noted:

The primary purpose of sentencing in contempt proceedings is deterrence. It should serve as a disincentive to those who might contemplate the breach of court orders. The courts do not have an army to enforce their orders. If large numbers of litigants were to disobey court orders, the system would soon break down.[8]

[9] While compliance with court orders is mandatory, the sanction imposed for non-compliance should be fashioned on a case by case basis to suit the defendant's conduct.[9]

Analysis

[10] The defendant is an intelligent and articulate individual. She also appears to be on a self-proclaimed mission not only to vindicate her “wrongful dismissal” but also the rights of her co-workers. Her preferred method is akin to extortion – demands for payment of a monetary settlement, initially pegged at $23.2 million then reduced to $500,000, coupled with threats that she will “go public” with the plaintiffs’ confidential business information if the settlement amount is not paid by a certain date. When the plaintiffs obtained a Court Order prohibiting her from doing so, she ignored it and disseminated the confidential information across the Internet. And then, in the days and weeks that followed, she continued to protest the validity of the Order and denied that she breached it.

[11] In my nine years as a judge of this court, I have never encountered a more defiant or less remorseful defendant. Her breach of the Court Order was serious and, in my view, deserves a significant sanction. I say this for the following reasons, as more specifically detailed in the Contempt Decision:

➢ The Court Order was breached by the defendant knowingly and deliberately. The level of her defiance was apparent in the emails that she exchanged with the plaintiffs’ counsel: “the court order has no effect” and “[the judge] cannot violate my right to free speech.”

➢ The defiance became increasingly public as the numerous press agencies and many of the plaintiffs’ employees learned that the proposed press release had been distributed in breach of a court order.

➢ The defendant had ample opportunity, after learning of the Court Order, to exercise the diligence required by law and take steps to retract the press release, but she intentionally decided to do nothing, despite the pleas and offers of assistance from plaintiffs’ counsel.

➢ The defendant had ample opportunity, after learning of the Court Order, to provide a list of the persons to whom the press release/confidential information had been disclosed but again, she chose to do nothing, despite the pleas from plaintiffs’ counsel.

➢ The breaches continue. The list of recipients as required under para. 5 of the Court Order has still not been provided.

➢ The defendant’s attempt to extort a settlement continued even after she had knowledge of the Court Order. As noted in the Contempt Decision:[10]

[I]n a reply e-mail on Sunday May 11 at 11:21 a.m., the defendant demanded a settlement:

[T]ell your clients that if they want me to go out of my damn way on Monday to prevent release after I’ve already paid for it…and there's no guarantee it can be stopped...they should settle. I have settled with companies before.

Settle now and I will try… no guarantees. Don't settle and I will face all consequences.

➢ About ten days after the May 9 Court Order, this court agreed to convene a case conference to discuss scheduling matters and provide an opportunity for the parties to discuss settlement. The fact that a settlement was not achieved is of no consequence. Disturbingly, however, as noted in the Kitching Affidavit, even ten days after the Court Order, the defendant still gave no indication that she would comply.

➢ There is uncontroverted evidence of significant harm that may be sustained by the plaintiffs. According to the Kitching Affidavit, Ceridian’s sales professionals have already received numerous questions and comments from clients regarding the press release which, as plaintiffs’ counsel argue, may have an impact on Ceridian’s business and position in a competitive market.

[12] In short, the defendant’s breach of the Court Order is serious and continuing.

[13] There are, sadly, no mitigating factors. The defendant has shown no remorse. She has not apologized. She has made no attempt to purge the contempt. The defendant breached paragraph 7 of the Order by making no effort to stop the press release when she literally had days to do so. She also remains in breach of paragraph 5 of the Order by refusing to provide the names of persons to whom the confidential information was disclosed. She continues to argue that this is nothing more than a defamation case, that the Court Order should never have been issued, that the Court Order was not breached and that the court and counsel have “colluded.” As I have already noted, I have never seen a defendant that was more defiant or less remorseful.

[14] In my view, whatever sanction is imposed must be sufficiently substantial to impress upon the defendant the seriousness of a knowing and deliberate breach that continued over four days without any action or effort on the defendant’s part to achieve even partial compliance. Relatively lenient sanctions such as community service or even a conditional “house arrest” sentence[11] would not, in my view, have a meaningful impact on this particular defendant and achieve the required level of specific and general deterrence and the appropriate measure of denunciation.

[15] Therefore two options remain – either a fine or a jail sentence.

Why a fine is not an appropriate sanction

[16] I agree with the plaintiffs that on the facts of this case a fine is not an appropriate sanction. The costs awards to date, totaling some $27,500, have not been paid and probably will never be paid. In her emails to the plaintiffs, both before and after the Court Order took effect, the defendant made clear that she has no assets and has “nothing to lose.” At the sentencing hearing, the defendant told this court that the most she could afford by way of a fine was $1200, payable at $100 per month. I note that in recently filed material she says she is “impecunious.”

[17] The defendant has a full-time job with Toshiba, working nine to five, five days a week. However, she is a single parent and has to provide for four children aged 17 to 20. The oldest attends university out of town, the other three are finishing high school and living at home. In all likelihood, the defendant’s employment income goes completely or almost completely to pay for her and her family’s living expenses. I am satisfied on the evidence before me that a significant monetary fine could not be paid and is therefore not an appropriate sanction.

[18] I also note that in one of her emails to plaintiffs’ counsel, the defendant stated that she was “not afraid to lose everything.” The plaintiffs submit that this attitude of defiance has continued and that even if the defendant could afford to pay a substantial fine, she would not do so. It would simply be ignored. I tend to agree.

Why a jail sentence is needed

[19] The law is clear that normally incarceration for civil contempt is a sanction of last resort[12] and should only be imposed when it is needed “to repair the depreciation of the authority of the court”[13] or “uphold the dignity and process of the court and to protect the integrity of the administration of justice.”[14] Here, in my view, a jail sentence is needed to accomplish these objectives and to achieve specific and general deterrence.

[20] Specific deterrence is a significant factor in this case, where the defendant has shown absolutely no intention of complying with the Court Order. Such conduct is contrary to the public interest and inimical to the administration of justice.

[21] General deterrence is important on the facts of this case particularly because of the public dimension that the case has acquired. The defendant disseminated her press release to more than a dozen news outlets. After the press release was posted on the Internet, the plaintiffs sent a copy of the Court Order to the various media outlets asking them to immediately remove all copies, references, links or other communications relating to the press release. The defendant’s disregard for the Court’s order has therefore become much more widely known.

[22] Also, as already noted, the defendant’s breach is known to many Ceridian employees, who are actively following this dispute. These employees, who have their own strict obligations of confidentiality, are aware of the defendant’s breach, her confidentiality agreement and of her violations of this Court’s Order. Given the nature of Ceridian’s business, it is important that confidentiality obligations be complied with and enforced in order to deter future violations. I agree with counsel for the plaintiffs that the ability to keep information confidential is integral to Ceridian’s ability to compete successfully in the human resources and employee management sectors and that the failure to do so would be damaging to Ceridian’s reputation among both its customers and its employees.

[23] Where the administration of justice has been flouted or ignored in public, imprisonment may be necessary for the court to send a clear a message that society as a whole disapproves of anyone who deliberately disobeys a court order.[15]

The appropriate jail sentence

[24] The plaintiffs propose a 30 day jail sentence. This is not an unreasonable submission. This court has imposed jail sentences ranging from five days to one year in cases of civil contempt.[16] Each of the custodial cases have two things in common: one, the defendant’s breach, like here, was knowing and deliberate; and two, the length of the jail term was a function of the continuing nature of the contempt discounted by the degree of remorse or apology on the part of the defendant. Here although the breaches continued over only four days, the defendant was defiant and showed absolutely no remorse. In my view, where the breach of a court order is knowing and deliberate, continues over several days, and the only response from the defendant is defiance without remorse, a jail sentence is appropriate.

[25] Having considered the sentences imposed in Mercedes Benz Financial[17] (5 days, continuing breaches, but the contempt is purged on the eve of hearing), Mastronardi[18] (21 days, numerous breaches, no remorse), and Sussex Group[19] (60 days, continuing breaches, no remorse) and the cases cited therein, I am satisfied that the range of appropriate sentence on the facts herein is 15 to 20 days. I am inclined to find that 20 days is a more appropriate sentence because of the degree of defiance and the additional need for deterrence and denunciation. The defendant continued to breach the Court Order on May 10, 11, 12 and 13 despite numerous emails from plaintiffs’ counsel asking her to comply.

[26] I am mindful, however, of the fact that the defendant is a single parent. She is able to work full time because her grown children do not require supervision. But her weekly income is probably needed to pay for her and her family’s living expenses. I therefore conclude that the 20 day sentence should be served intermittently, that is, on weekends. In this way, an appropriate jail sentence will be imposed but the defendant’s job and employment income will not be jeopardized. It is my understanding that a weekend incarceration from late afternoon Friday to early morning Monday is accorded an equivalence of four days. The defendant would therefore be able to serve her 20 day jail sentence over five weekends.

[27] I sentence the defendant to 20 days in jail, to be served intermittently, over five weekends.[20]

The jail sentence is stayed for 30 days

[28] There is no automatic stay pending appeal with respect to a contempt order or a sentence imposed under Rule 60.11(5) of the Rules of Civil Procedure: see Rule 63.01(1). If the defendant wishes to obtain a stay, she must bring a motion to obtain that relief and satisfy this court or a judge of the Court of Appeal that she has met the requirements for a stay pending appeal.[21]

[29] The defendant has indicated that she intends to appeal both the Contempt Decision and this sentencing decision. In order to ensure that the defendant is reasonably able to exercise her rights of appeal, her sentence will be stayed for 30 days to give her an opportunity to bring a motion before the Court of Appeal to stay her sentence, if she so chooses. If the matter is not stayed by the Court of Appeal, the defendant shall attend before me on Friday, August 15 at 3 p.m. at which time the sentence will be formally imposed.

Disposition

[30] Ms. Farida Azeezodeen is sentenced to 20 days in jail, to be served intermittently over five weekends. The sentence is stayed until August 15, 2014 at 3 p.m. as described above.

[31] The plaintiffs ask for costs on a substantial indemnity basis. Costs of a contempt motion are normally awarded on a substantial indemnity basis.[22] The plaintiffs’ costs outline shows $16,401 on a partial indemnity basis. I have reviewed the costs outline and I am satisfied that the time spent and disbursements incurred are reasonable. My primary obligation, however, is to ensure that the costs award is fair and reasonable to the losing party.[23] The most I can do, in fairness to both sides, is to reduce the amount being sought to $15,000 all-inclusive. Multiplying this amount by 1.5, as required by Rule 1.03(1), the total costs award on a substantial indemnity basis is $22,500.

[32] Costs are therefore fixed at $22,500, payable forthwith by the defendant, Ms. Azeezodeen to the plaintiffs, Ceridian and Pendylum.

Date: July 15, 2014
Belobaba J.